Wednesday, October 31, 2007

We know that Scott Peterson shouldn't be entitled to the proceeds of the $250,000 life insurance policy held by his wife. Whom he killed. So the result in this case is hardly surprising.

What's interesting, however, is how much work it takes to get there. Especially given the -- somewhat questionable, in my view -- strategic choices made by the parties below.

To begin with, there was the decision made by counsel for the Estate of Laci Peterson to move for summary judgment on the fact that Peterson killed his wife based solely on the record of his criminal conviction. But, as Justice Ardaiz rightly explains, since that verdict's on appeal -- an appeal will take quite a while, I might add -- it's not a "final judgment" entitled to res judicata. And whether, for the same reason, it's even admissible evidence in the first place is a close question, though Justice Ardaiz ultimately holds that it is. Regardless, since there's ample evidence submitted by the prosecution in the criminal trial just waiting to be introduced, why not slap some or all of that stuff in as well? Seems pretty easy. And avoids the very real risk that the fact of the still-on-appeal criminal conviction won't be good enough to obtain summary judgment.

Then there was the decision by Matthew Geragos, who's representing Scott Peterson, to resist summary judgment solely through a declaration that says that the criminal conviction is on appeal. Sure, Scott didn't testify at trial, so there's perhaps reason for him to remain silent. Though a simple "I didn't do it" declaration would be enough to survive summary judgment, and then potentially seek a stay of the civil action during the pendency of the criminal appeal (or submit other evidence already admitted at trial to create a genuine issue of material fact, which ain't tough). It just seems fairly lame to resist summary judgment, and to spend money on an appeal as well, with such minimal support, especially when all the evidence at trial is just sitting there waiting to be produced -- and create a genuine issue of material fact.

No one's crying about the result, obviously. Still. I think the attorneys in this one could have done a bit better.

I was in DC on Monday, so missed this opinion when it first came out. But it's not one that should be overlooked. There's a great debate between Justice Reardon (who writes the majority opinion) and Justice Ruvolo (who authors the dissent) about whether, in a jury trial, having a uniformed, armed deputy sheriff sitting immediately beside the defendant during his testimony -- and no one else's -- is impermissible. It's obviously okay when there's a history of violence or the like, but is it okay when, as here, there's nothing out of the ordinary that would justify such a practice.

I'll leave you in suspense as to which side wins out, as I want you to read the respective opinions. One of them, I think, is fairly superficial. The other one -- the one I agree with, not surprisingly -- seems far more cogent and persuasive.

Friday, October 26, 2007

It's been a very slow week for the Ninth Circuit. Only four published opinions during that entire period. But, thankfully, the California Court of Appeal has been picking up the slack.

Including this 96-page missive by Justice Haller. Which, thankfully, is largely unpublished, since the vast majority of it concerns totally case-specific recitations. No reason to kill massive numbers of trees, I figure.

Indeed, besides its sheer (and unusual) length, the only reason to mention the opinion is because it's a case from San Diego and involves a white collar defendant named Kevin Cole. A name that, I can assure you, down here belongs exclusively to notorious felons.

Thursday, October 25, 2007

A's girlfriend calls B a "crab". Which -- and I am not at all embarassed to admit that I did not know this until now -- is apparently an incredibly mean thing to call a Crip. At which point B, who has overheard the insult, tells A to -- and pardon my language on this one -- "check your bitch" (i.e., "control your woman").

At which point A responds -- and I think this is an entirely reasonable reply, by the way -- that "my baby's mama ain't no bitch." B then challenges A to fight. Chivalry, apparently, not being nearly as dead as might occasionally be reported. But A refuses.

All that I'm clear on. But tell me this: When B thereafter repeatedly attempts to murder A, you mean that's still a crime?! I mean, come on!!

Imagine that you (or a loved one) were being tried for a criminal offense, and you thought that you (or your loved one) were legally insane at the at time of the crime. You might not always have been insane; after all, even the most nutty of people tend to have periods of lucidity. But you thought that, at the relevant time, the perpetrator of the charged offense was incapable of telling right from wrong, and hence was legally insane.

Not imagine further that the trial court gave the jury the following jury instruction, which comes from CALCRIM No. 3450: "If you conclude that at times the defendant was legally sane and other times the defendant was insane, you must assume that he was legally sane when he committed the crime." How would you feel about that? An accurate instruction? Don't forget, by the way, that the defendant has the burden of proving insanity. Doesn't this instruction tell the jury that as long as the defendant was ever legally sane, they gotta find him guilty; e.g., that they "must assume that he was legally sane when he committed the crime"?

Justice Hull concludes that the instruction is potentially misleading, but nonetheless doesn't require reversal because no reasonable juror would be misled by it. I agree with the former conclusion. In spades.

Wednesday, October 24, 2007

Rarely do you see the Court of Appeal describe an impressive performance at trial by a criminal defendant who elected to represent himself. That's because pro per litigants are usually terrible. Awful. Horrible. Couldn't be worse.

But Justice Raye says many nice things about the defendant's performance in this opinion. Mind you, he doesn't say glowing things about the defendant himself, who displayed "a disturbing pattern of [] sexual exploitation of young girls" and who was convicted of molesting his 6-year old daughter, having sex with (and impregnating) his 15-year old sister, and possessing child pornography. But even profoundly disturbed individuals are -- apparently -- capable of being good attorneys. And Justice Raye describes defendant's performance at trial thusly:

"[T]he record of the ensuing proceedings attests to his effectiveness. His cross-examination of witnesses was appropriately gentle when confronting his young daughter and appropriately searing when confronting his ex-wife, who he asserted was the mastermind behind the false charges. His argument was cogent. He highlighted the weaknesses in the prosecution’s case, challenged the veracity of the prosecution’s witnesses, and offered a viable alternative to the prosecution’s theory. Even before trial began and he had the opportunity to demonstrate his legal prowess, the court had absolutely no reason to doubt his ability to defend himself. In sum, the court was presented with a bright, articulate, and competent defendant . . . ."

That's not a description you see every day. Admittedly, Justice Raye is saying all that not to be nice, but rather to justify the refusal to vacate defendant's convictions. So maybe one should somewhat take all those nice words with a grain of salt.

Regardless, I don't care how good you are: Don't represent yourself. Just don't do it. Even that public defender whom you hate will do a much, much better job than you will. Even if, as here, you aren't terrible. Trust me.

Tuesday, October 23, 2007

This one wouldn't have received nearly as much attention had it been published prior to the Larry Craig scandal. But if you're desperate to know what happens when you get caught with your zipper down in a public restroom in California and are charged with disorderly conduct -- and who isn't? -- check it out.

Monday, October 22, 2007

"In early August 2006, Adalberto M., a 37-year old homeless man with a history of heroin and methamphetamine use, was admitted to the Ventura County Medical Center (VCMC) after testing positive for tuberculosis (TB). TB is a highly contagious and potentially fatal disease. The next day, the director of Ventura County's tuberculosis program, Dr. Kurt Cook, issued an Order of Isolation directing appellant to stay in a motel room the county provided for him while he completed taking a course of medication. Appellant agreed to, and signed, the isolation order. Public health staff took him to a motel and stocked the room with food, drinks, a refrigerator and a microwave oven. Appellant stayed there for about six days at the county's expense. Then, he checked out, forsaking his free room, board, and medicine. He did so to purchase illegal drugs."

Fires rage. The University of San Diego closes down. But the Ninth Circuit bravely continues to publish opinions.

Tears of respect well up in my eyes. Or is that just from the smoke? Regardless, I wish the Ninth Circuit would have published something interesting today. But it didn't; two snoozers, and then an order the depublishes another case. Zzzzzz.

But that just gives me the opportunity to talk about a Ninth Circuit opinion from a tiny bit ago that's very special. That provides additional evidence -- in the highly unlikely event that it is necessary -- that the Ninth Circuit neither likes nor respects Judge Real. Here it is.

No way the Ninth Circuit reassigns this case on remand if the judge is anyone else. You get a very keen sense from the opinion -- especially when combined with the legions of others in prior cases about Judge Real -- that the Ninth Circuit wishes that Judge Real doesn't really belong on the bench. Much less that he can be trusted to deciding a variety of cases neutrally after being reversed.

Having Judge Real below almost always doubles -- or more -- the chance of reversal on appeal. And never, never refrain from asking for a different judge on remand if Judge Real was on the other side of you below. You definitely got a very real shot.

Even when -- as here -- the panel consists of very nice and polite judges. They still know the scoop.

Thursday, October 18, 2007

You might well -- indeed, probably will -- get away with it if you suffocate your 87-year old mother with a pillow while she's in a nursing home. Even if her death was entirely unexpected, everyone will just think she died of natural causes. Success.

Except, of course, if you promptly call your brother and tell him what you just did to his mother.

Imagine you've got a case that's pending before the en banc court in which you've got very little to gain even if you win. Say, for example, it's a U.S. immigration case, bu the client has already moved to Canada, where he prefers to stay anyway. So there's no monster upside even if you win. Moreover, during the oral argument before the en banc court, you get the very -- very -- keen sense that you're going to lose anyway. What would you do?

Why not just have the client withdraw his underlying petition? That way the case is moot and you don't get a bad precedent from the Ninth Circuit. Sure, it doesn't help you. But it might help others. And you don't care much anyway, since you're in Canada.

The Ninth Circuit allows the petition to be withdrawn, and disposes of the case. But Judge Kozinski (joined by Judges Kleinfeld, Clifton, and Callahan) dissents from the dismissal of the appeal, and makes some very cogent points. Underlying all of which, of course, is Judge Kozinski's basic emotional point: "Hey, I crushed you at oral argument, and my side was totally going to win. No fair calling off the game!!"

I'm positive that the withdrawal of the petition was a smart strategic call. I'm also positive that it results -- and was designed to result -- in precisely the type of manipulation identified by Judge Kozinski. But I'm also positive that repeat players do this quite a lot anyway. Moreover, some of Judge Kozinski's concerns are, as I think he realizes, much more theoretical than actually real: for example, his concern for "leaking" of opinions through law clerks and the like isn't something that I really think keeps anyone up at night.

Still, very neat stuff. A dissent worth reading. If only as a how-to guide for manipulating precedent!

Wednesday, October 17, 2007

Justice McDonald is exactly, exactly right. And makes the argument cogently, intellectually, and with precision. Giving a massage on a conscious person that starts consensually but then goes beyond the bounds of a legtimate massage constitutes neither "rape by a foreign object on an unconscious person" nor "oral copulation on an unconscious person" when the person remains conscious and demonstrably able to object.

It's battery. It might be a wide variety of other things. But it's not the defined form of rape under either Section 288 and 289 of the Penal Code.

Justice McDonald rightly notes that the issue is actually closer than you might initially think. But he's nonetheless right that, in the end, it's neither of the offenses for which the defendant here was convicted.

So Judge Hammes (down here in San Diego) gets reversed. And properly so.

That said, I ain't getting a massage from David Stuedemann anytime soon. Ejther at the Kobe Swap Meet or anywhere else.

Whereas I have briefly been away from my computer, the Ninth Circuit has been busy as a beaver. And cranked out a half-dozen published opinions yesterday. With more from the California Court of Appeal.

Good for them. Glad to see that someone is working hard.

Though I was somewhat surprised by this opinion by Judge Leavy. When I read the beginning of the opinion, I was on board. Douglas Carlson submits a FOIA request that wants to know the addresses and hours and final collection times for all of the post offices in the United States. That seems fine to me, and I was surprised that the district court denied the request. I don't know why he wants it, but that information seems fairly relevant to a governmental mission. Maybe he's got a theory, I thought, regarding underserved locations. Or maybe he's just weird. Whatever. Just give him the stuff. No harm in it. And Judge Leavy was obviously going that same way. Good. You've got my -- meaningless -- vote as well.

But then I read the rest of the opinion. And it became clear that the only reason Carlson wants this data -- which he expressly demands in its electronic form as it appears on the USPS's web site -- is because he wants to establish a commercial web site that mirrors the USPS's. And since the web page for which he seeks the data is the USPS's most popular one, and one that gets a lot of traffic (and hence potential income for the USPS), the USPS doesn't want that. Which is why it invoked the commercial activity exception to FOIA.

Judge Leavy reverses the district court and orders production of the requested records. But, upon reflection, I'm not persuaded. Maybe in a different context I'd find the commercial activity exception inapplicable. Or if there was some protective provision that allowed production but not reproduction, maybe then I would find production warranted. But not here. It seems in this case simply that Carlson wants to make money through FOIA by replicating a commercial activity of the post office. And that's not my sense of what FOIA was (or is) designed to do.

Admittedly, I don't feel massively strongly about this. There are surely bigger problems in the world. But I might lean to affirming on this one. Notwithstanding the unanimous contrary opinion of Judges Leavy, Farris, and Boochever.

Thursday, October 11, 2007

It's an attorney-client privilege issue. The trial court ordered the disclosure of internal corporate documents discussing litigation strategy and the like that had been exchanged between various corporate employees, holding that unless these discussions contained essentially verbatim recitation of actual words of counsel, the attorney-client privilege didn't apply, since there was no "attorney" involved in the communication. But the Court of Appeal correctly notes that the privilege is broader than that, and includes -- pursuant to, inter alia, Section 952 of the Evidence Code -- discussions between others as well.

It takes a tiny, tiny bit of a stretch of the statutory language to hold that client-client documents like the ones at issue here may well be privileged, but I think that's nonetheless clearly the right rule.

Stylistically, by the way, I think that Justice Epstein went a little overboard here with the Control-I button. But the large number of clauses in italics are a minor complaint. He makes the right decision. Which is what really matters.

Yikes! Want to read a creepy story about a dangerously threatening geek? Then read the first four pages of this opinion. Nasty.

Later on, notice how the defendant (Steven Sutcliffe) goes through not one, not two, but six different attorneys -- before the trial court forces him to represent himself, anyway -- by purposefully insulting, attacking, and suing them during the representation. How'd you like to be one of those attorneys? Especially knowing the type of -- pretty much insane -- person you're representing? Not fun.

Sutcliffe gets less than four years in prison. And, scarily, is already out on the streets, on supervised release.

Funny line by the district court, which sentenced Sutcliffe to the top end of the guidelines range. Judge Matz tells Sutcliffe: "If there were a crime . . . that consisted of arrogance, I would depart upward to sentence you to a much longer sentence." Never something you want to hear your judge say at sentencing, I imagine.

Wednesday, October 10, 2007

Timothy Parles kills his wife by stabbing her in the back. He gets convicted of first degree murder, and loses his California appeals. But he files a federal habeas petition, and it's granted by the district court. But, before the Ninth Circuit, in 1994, the habeas grant is reversed and remanded. By a panel whose two Ninth Circuit constituents are Judges Hall and O'Scannlain. No great shock there.

On remand, the district court again grants habeas. And again California appeals. It's a different panel this time -- Judges Noonan and Bybee are the two Ninth Circuit judges -- but its the same result. Grant of habeas reversed and remanded.

Third time back down. Same district court judge -- Judge Alsup -- and he shan't be deterred. Another grant of habeas relief. And another appeal by California.

But, this time, the panel consists of Judges Hawkins, Tashima, and Bea. And, unlike the other two times, this time, the district court's decision is affirmed. In one of the very rare opinions in which "cumulative error" is the basis for a reversal on federal habeas. Especially post-AEDPA.

So don't give up. Especially if you're otherwise just going to spend the rest of your life in Susanville -- a place to which I've been, and which I can assure you is not especially fun. Might as well hope that Appeal #3 will go better than Appeal #1 and Appeal #2.

But for everyone else, here's a good little opinion about what it takes to defeat removal in a diversity case by pleading an amount in controversy less than $75,000. And essentially a primer on how to carefully -- and with little or no relation to reality -- craft your complaint so that you get to be in whichever forum you want.

Plus it's got the neat little trick of being an O'Scannlain opinion with a separate concurrence by, you guessed it, O'Scannlain. The latter of which says, essentially, that he disagrees with his own opinion, but is bound by circuit precedent to do the wrong thing.

Friday, October 05, 2007

When a security guard calls 911 after he sees you beating your domestic partner, it generally doesn't help to go up to the guard and say "You want to be a hero, m****r f****er? You're going to die." Or to then chase him around his security vehicle and tell him to hang up the phone because you're well-known to the Oceanside Police Department as well as the FBI. Presumably for more than your sparkling personality.

Oh, and it's admittedly not a separate criminal offense to say "It's none of your f***ing business what I do to my girl." Still, that's probably not a great idea either. And, by the way, those earlier comments do indeed constitute an additional criminal offense: dissuading a witness. Which, Mr. Upsher, you should well know, since you were previously convicted of precisely such an offense.

Thursday, October 04, 2007

This is a memorable set of cases. Which, at this point, pervade not only the F.3ds, but also the Cal. App. 4ths. The underlying fact pattern involves a rich married couple of doctors who liked to engage in sophisticated (as well as not-so-sophisticated) ways to evade taxes and who had the all-too-eager help of several lawyers in that regard. The lawyers pled guilty to conspiracy and attempted tax evasion, ratted out their clients, and then a plethora of civil and criminal litigation followed. In all of which, the members of the Bussell family behaved precisely how you'd expect them to behave, which is to say: badly. Made exceptionally memorable by the unusual fact that, during jury deliberations in their criminal trial, the husband took a header out the window of his hotel room. Which is one way -- though not a very good one -- to avoid a conviction.

I previously commented, back in 2005, on the wife's initial appeal of her conviction to the Ninth Circuit. And didn't have many nice things to say about Ms. Bussell. Then, back in March of this year, I said even less nice things about both Ms. Bussell and other members of her family in connection with their unsuccessful appeal in front of the California Court of Appeal in which the trial court had -- totally properly -- granted terminating sanctions against the Bussells.

Today, Ms. Bussell again appears before the Ninth Circuit, which is again forced to address the propriety of her sentence in the criminal case. Which, at 36 months (plus a huge order of restitution), is pretty darn slight, in my mind. And Ms. Bussell (again) mostly loses, though she does obtain a token victory in connection with a particular trust deed.

Hopefully this will be the last we hear from the Bussells. I've seen more sympathetic parties. At cockfights.

Wednesday, October 03, 2007

O'Melveny & Myers brought a lawsuit on behalf of thirty-two low-income tenants who had been wrongfully evicted from their apartments. It won. Four of those thirty-two tenants had an attorney fee provision in their contracts, so O'Melveny requests attorney fees of over $413,000. Which is way more than the four plaintiffs recovered at trial. But, hey, that's the way it works sometimes. Plus, we're O'Melveny. We charge a fair piece.

The trial court (Judge Elias in LA) cuts the fee request by a lot, but still awards almost $124,000 in fees. An amount that, the landlord notes, is 131 times higher than the LA Superior Court's guidelines for fee awards in contract cases. That said, the $124,000 award is a lot less than the $413,000 requested, and the trial judge explained that part of the reason for the big haircut was because O'Melveny "knew this was a mildly pro bono type work" given the small amounts at stake.

Not only that, but Justice Johnson also makes fairly clear (without expressly holding) that had O'Melveny filed a cross-appeal of the haircut it took on fees, it almost certainly would have won, since it's impermissible to whack a fee request on the ground that you "knew going in" that it was probably a pro bono case. You still get reasonable fees notwithstanding the fact that you might have been willing to do this entirely pro bono. A rule that's clearly right.

So the party that appeals loses and the party that probably should have appealed wins, but wins less than it might.

Here's another big firm -- this time, Morrison & Foerster -- taking on pro bono-ish representation of a plaintiff and then requesting a hefty award of attorney's fees.

MoFo, and it's high-profile partner Arturo Gonzalez -- represented a dispatcher for the City of Taft Police Department who alleged that she was sexually harassed. The parties agreed to a $175,000 settlement plus attorney's fees to be determined by the court. MoFo subsequently filed a motion to recover over $500,000 in fees. And delineated precisely how much its attorneys charge, which Justice Kane helpfully publishes for our purient review: Arturo Gonzalez, $550/hour; Eric Tate (a partner), $475/hour; Samantha Goodman (an associate), $415/hour; and then three lower-level associates (Erika Drous, Dara Tabesh, and Steven Tang) at $225-275/hour. (P.S. - I couldn't help but notice both the steep drop-off in rates between first three and the second three lawyers, nor the fact that the three low-priced associates are each graduates of Hastings Law.)

The City of Taft opposes the motion by arguing that the rate for local lawyers in Taft -- population, 6400 -- is, at most, $250/hour for partners and $160/hour for associates. Which I find credible. But MoFo says that the plaintiff tried to find a local lawyer but, oh, shucks, just had to settle for MoFo's lawyers in San Francisco and Los Angeles, so a full fee award at the SF/LA prevailing rates (plus travel time to Tate) is appropriate. Even though the declaration by plaintiff made crystal clear that she made no effort to retain local counsel before, darn it, she decided to go with this crazy out-of-town "MoFo" firm of which no one's ever heard.

The trial court cuts the fee request a tiny bit, and orders a fee recovery of over $470,000. The City of Tate appeals. And wins. Justice Kane holds that there wasn't an adequate showing that justified recovery for out-of-town rates, so remands for a recalculation of the proper award.

Don't cry for MoFo, though. They'll still make a ton. Indeed, much more than their client, the person who was actually (or at least allegedly) sexually harassed.

Tuesday, October 02, 2007

I'm on board for this one. It's merely an equivocal request for counsel when a defendant says "How long would it take for a lawyer to get here for me?" and, when the detective responds "That’s up to you. Do you want an attorney right now?," follows it up with "How long would it take if I said yeah?" You get to keep on talking to him to clarify what the defendant really wants. And if he ends the conversation about counsel, as Michael Simons does here, by responding to a detective's question "Do you wanna continue talking to us?" by saying "Yes I do," there you have it. No invocation. Evidence admissible.

Parenthetically, the defendant here is far from a sympathetic chap. Not that this describes many murderers, mind you, but Michael seems a particularly sleazy and unlikeable character. He killed his 17-year old wife with a couple of premeditated shotguns blasts (and the help of a couple of cohorts) because his wife wants to try to save the marriage (!) and because Simons is dumb enough to think that a $50,000 insurance policy that lists someone else as a beneficiary will get paid to him upon his wife's death. Classy. And brilliant. I can't tell you how happy I am you got caught. And that your conviction -- and sentence of life without the possibility of parole (plus 25 years) -- was affirmed.

Monday, October 01, 2007

But, in this case, the linguistic dispute is far more meaningful. As well as significant, since it decides whether or not the defendant spends the next 36 years to life in prison.

The query: What does "mutual" mean? Especially in the context of "mutual" combat?

Justice Rushing provides an outstanding answer. In an opinion that is cogent, well-written, and persuasive. It deserves a full read. It's that good.

I'll nonetheless shorthand it for you as well. When a woman -- insulted at being called a "whore" -- slaps a man, and the man beats the crap out of her in response, that's not "mutual combat". At least as we use that term in the context of self-defense. Sure, the combat is "mutual" in that both parties engaged in it. But that's not what we mean. Boxing is a type of "mutual combat". So's fencing. But your routine slap-and-punch isn't. For the latter, the usual rules of self-defense apply. It's not "mutual combat" in which the rules are different. And hence, in this case, the defendant's conviction gets reversed. And, on remand, the trial court shouldn't even give the "mutual combat" instructions. Which seems entirely right.

Mind you, the mere fact that slap-and-punch isn't mutual combat does not, in my view, justify someone going ballistic on the face of a woman who's simply slapped you. At all. But that's for a jury to decide, not me, and they should indisputably do so on the basis of proper and relevant instructions.

So I think Justice Rushing gets this one exactly right. In an opinion that's definitely worth a read.

I love a man who can use both the term "aliquot" as well as the term "goo" in the same opinion. That man, in this case, is Judge Kozinski.

This opinion is also a good example of a policy-oriented decision. Sure, there are citations to cases. But they don't actually mean anything. The decision comes out the way it does because it makes sense. That result is consistent with the text of the statute, to be sure. But there's no need to pound at length upon the alleged "unambigous" nature of the text (which is rarely the case, otherwise there wouldn't be much of a dispute) and repeated claims that, as a result, nothing more need be said. The statute makes sense because it makes sense, and to read it a different way would lead to bad (and unintended) results. Sounds good to me.

P.S. - I was at the oral argument in this case because I was arguing an appeal later that morning. And I can tell you that it was clear to everyone in the room that the case was coming out the way it did. No one on the panel -- and especially Judge Kozinski -- was keeping their view of the case hidden. Or even muted.